Judge orders the FBI to explain their Internet spy plans

The FBI has been adamant about withholding information about their plans to ensure the government can access any encrypted emails or messages sent over the Internet, but now a federal judge says the agency needs to come clean.

US District Judge Richard Seeborg took the side of the Electronic Frontier Foundation this week in a case that’s been disputed back and forth between Pennsylvania Avenue and Silicon Valley for years. Washington hopes to eventually roll out a program that will see that the FBI and other federal agencies are allowed backdoor access to any and all online communications. So far, though, they’ve managed to make much of the so-called “Going Dark” program a matter that’s shielded from interested parties, namely the EFF and other Internet activists. On Tuesday, Judge Seeborg agreed with the plaintiffs that the Justice Department has been not exactly accommodating with Freedom of Information Act paperwork filed by the San Francisco-based non-profit, and said the FBI and other federal agencies will have to go back and reassess those requests, ordering a "further review of the materials previously withheld.”

The EFF has on at least two occasions filed FOIA requests for info on the secretive surveillance blueprints the FBI has drafted, but the response have been scant at best. Judge Seeborg now rules that the DoJ will have to examine their annals once again for information, as their responses to the requests so far have been insincere.

“T]he Government is directed to conduct a further review of the materials previously withheld as non-responsive. In conducting such review, the presumption should be that information located on the same page, or in close proximity to undisputedly responsive material is likely to qualify as information that in ‘any sense sheds light on, amplifies, or enlarges upon’ the plainly responsive material, and that it should therefore be produced, absent an applicable exemption,” the judge ruled, according to court papers first spotted by CNet.

The two requests in particular that will have to be reassessed relate to the Communications Assistance for Law Enforcement Act, a 1994 law that Judge Seeborg says was “designed to aid law enforcement efforts to conduct surveillance of digital telephone networks.” After nearly 20 years on the books, though, the EFF argues that law enforcement officers across the charts have wanted updated additions to the legislation, particularly because FBI Director Robert Mueller has told the US Senate as recently as September, "We must ensure that our ability to obtain communications pursuant to court order is not eroded," because many companies "are not required to build or maintain intercept capabilities."

We want to "be able to obtain those communications," Mueller said during a May hearing on Capitol Hill. "What we're looking at is some form of legislation that will assure that when we get the appropriate court order that those individuals — individual companies are served with that order do have the capability and the capacity to respond to that order."

The EFF fears that the Justice Department is asking for amendments to the CALEA that

would “require all services that enable communications — including encrypted e-mail transmitters, social networking websites, and “peer to peer” messaging services — to be technically capable of complying with wiretap orders, including being able to intercept and unscramble encrypted messages.” What they actual are asking for remains up for debate, however, as those FOIA requests have been all but ignored.

When the Criminal Division of the DoJ decided to respond to the EFF, they said they found 8,425 pages of “potentially responsive information.” What they returned, however, was hardly that. “It ultimately released one page in full and 6 pages in part, and withheld 51 pages in full. DOJ also referred approximately 500 pages of potentially responsive information to other agencies for processing and possible production to plaintiff,” Judge Seeborg writes.

Both sides have been given 15 days by the judge to "meet and confer to negotiate a timetable for the FBI to complete" its revisions.

"It's nice to have a court say the government can't do that,” EFF staff attorney Jennifer Lynch tells CNet’s Declan McCullagh, adding that the judge’s ruling shows that the Justice Department now is required "to make an effort" to comply with the FOIA.